RAMCHAND TOLARAM KHATRI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE are two appeals filed from a judgment of the learned Special Judge, Greater Bombay. Appeal No. 652 or 1955 is by Ramchand Tolaram Khatri who was originally accused 2 and Appeal No. 671 of 1955 is filed by Mr. Rijumal Kripalani who was originally accused 1. The learned Special Judge, Greater Bombay, has convicted both these appellants of an offence under Section 161 read with Section 34, Penal Code and has sentenced the appellant in Appeal No. 671 of 1955 to suffer one year's rigorous imprisonment and to pay a fine of Rs. 500/-or in default to suffer one month's further rigorous imprisonment the learned Judge has sentenced the appellant in Appeal No. 652 of 1955 to suffer 9 months rigorous imprisonment and to pay a fine of Rs. 300/-6r in default to suffer 15 days' further rigorous imprisonment. Both the appellants, as I have said, have been convicted of an offence under Section 161 read with Section 34, Penal Code.

(2.) THE charge against these appellants, who were originally accused 1 and 2, was that accused 1 being a District Officer for Industrial Co-operatives and Village Industries and accused 2 being a Supervisor in the office of the Assistant Registrar of Co-operative Societies, Bombay, were public servants and that they, in furtherance of their common intention to obtain Illegal gratification as a motive or reward for doing or- forbearing to do an official act or for showing favour or forbearing to do disfavour to the Society in the exercise of their official functions, on various occasions during the months of October and November 1954 at Greater Bombay, attempted to obtain for themselves from the Modern Tanners' Co-operative Society Ltd. , Bombay, and did, on 19-11-1954, obtain from Shri Abdul Rehman, a member of the Managing Committee of the abovesaid Society, gratification other than legal remuneration to the tune of Rs. 2,500/ -. The charge stated that the common intention of the appellants was to attempt to obtain from the abovementioned Society gratification other than legal remuneration at the rate of Rs. 50/- per month since the inception of the Society, that is Rs. 3,000/- in all, or at the rate of half a per cent on the turnover of the Society. As I just said, the charge alleged that on 19-11-1954 at Dharavi, Greater Bombay, the appellants did accept from Shri Abdul Rehman an amount of Rs. 2,500/- in twenty-five currency notes of Rs. 100/- each as illegal gratification.

(3.) NOW, the facts of the case as contended by the prosecution and which laid to the prosecution of the present appellants may be briefly stated. The Modern Tanners' Co-operative Society at Dharavi is a Society which was registered in the year 1949 under the Co-operative Societies Act. Mr. Rajderkar, who is one of the prosecution witnesses in this case, was the chairman of the managing committee of this Society at the material time. Abdul Rehman, Bhagwat and Basu were the members of the managing committee of this Society. Mr. Bhagwat in addition was also a Secretary of the Society. Accused 1, in his capacity as a District Officer for Industrial Co-operatives and Village Industries, was an ex-officio member of the Society. Abdul Rehman used to attend to the purchase of the materials for the Society. He also used to attend to the sale of the finished goods of the Society. He used to handle the cash of the Society and make payments on behalf of the Society. Mr. Basil was a salesman and he used to look to the sale of the finished products manufactured by the Society. He (Mr. Basu) used to be given a commission of 2 per cent on the orders which were booked by him including the orders from Government, pursuant to which orders sales were effected it is to be noted that accused 2 had upon one occasion orally conveyed to the managing committee of this Society an objection in regard to the payment of the 2 per cent commission to Basu. The Joint Registrar of the Co-operative Societies visited the Society on 18-8-1954 and he made his report on 23-8-1954 in which report a pointed reference was made to the commission of 2 per cent, which was paid to Basu on orders which were received by the Society even from Government. When the Joint Registrar visited the Society on 18-8-1954, he was accompanied by accused 1. The Society had been given a loan of Rs. 73,925/- by the Government of Bombay. This loan was repayable with interest in five annual instalments. Subsequently, there was a rectification in the terms of repayment and it is to be noted that a sum of Rs. 2184-8-0 had become payable by the Society to Government. There was an audit memo covering the period 1-7-1951 to 31-12-1952. It was submitted by the auditor of the Co-operative Societies on 23-7-1954. On 21-10-1954, says the prosecution, both the accused visited the premises of the Society in the morning. Accused 2, whose name is Khatri, inspected the accounts of the Society and signed the cash memo in token of his having inspected the accounts. After doing this, he (accused 2) took Abdul Rehman aside and told him that since other co-operative societies were paying them (the term 'them' obviously referred not only to accused 2, but also to accused 1) money, this particular Society also should pay them money. Accused 2 told Abdul Rehman on that occasion that he was communicating this to him under instruction from Mr. Kripalani, that is accused 1. When this suggestion was made by accused 2 to Abdul Rehman, Abdul Rehman said that he would have to consult the Secretary and other members of the managing committee. He said he would let accused 2 know subsequently about it. Thereafter both the accused left the premises of the Society. This happened on 21-10-1954. At about 11 o'clock in the morning there was a telephone ring from accused 1 and Abdul Rehman was called to the telephone. Abdul Rehman was told on that occasion by accused 1 on telephone that the talk which accused 3 had with him on the previous day must be taken to be a talk on his (accused 1's) behalf also. Abdul Rehman told accused 1 that he had had no talk with Mr. Bhagwat and that he would talk to him later during the course of that day. After this telephone conversation, which Abdul Rehman had with accused 1 on 22-10-1954, Abdul Rehman communicated the purport of that talk to Bhagwat and Basu. On the next day, the 23rd October, there was a telephone ring for Bhagwat from accused 1. Accused 1 enquired from Bhagwat whether Abdul Herman had communicated to Bhagwat the talk which he (accused 1) had with Abdul Rehman. Bhagwat, evidently disgusted, told accused 1 that he could not talk such things on telephone and that accused 1 should better go down to the Society and meet them. The next day was the 24th October 1954. On that day, in the morning, Bhagwat went to Surat and he was in Surat on the 24th and 25th October. On the 24th October, however, in the morning, both accused 1 and 2 went to the Society. This was about 9 o'clock. Both the accused enquired from Abdul Rehman as to whether the monies were ready according to the telephonic conversation which had been carried on with Mr. Bhagwat. Abdul Rehman told accused 1 and 2 that Mr. Bhagwat had gone to Surat and the matter could only be decided after his arrival back to Bombay. Accused 1 thereupon told Abdul Rehman that he desired that a suit case should be prepared for him obviously suggesting that the leather for the suit case should be supplied by the Society. Accused 1 further told Abdul Rehman that his man would go to the Society and the Society should supply him with the leather. Before leaving the Society, both the accused told Abdul Rehman that upon Mr. Bhagwat's return to Bombay from Surat, they should be informed of what decision had been taken in the matter of paying them money. It may be noted that the Chairman of the Society, Mr. Rajderkar, was not in Bombay between the 25th and the 28th October 1954. When Rajderkar returned to Bombay on the 28th October, he was informed of the conversation which accused 1 and accused 2 had with Abdul Rehman. He was also informed of the telephonic talks which had been taking place between accused 1 and the members of the managing committee of the Society. Rajderkar said that the best the Society might do might be to supply accused 1 with a piece of leather; but Mr. Rajderkar clearly stated that no money could be paid either to accused 1 or to accused 2. On 31-10-1954, Gadre, one of the prosecution witnesses in this case, went to the Society's office and asked for leather for a suit case to be prepared for accused 1. Mr. Gadre selected the leather, but did not take it away on that day. That was because the leather was not dry. He went again to the Society' on 1-11-1954 and took the leather on that day. On 12-11-1954, one Yeshwant Khandekar, a peon in the Co-operative Department who was working under accused 2, went to the premises of the Society. He went there under instructions of accused 1. On that day, however, Khandekar could not contact Bhagwat. He met Abdul Rehman instead and enquired from Abdul Rehman, under instructions from accused 1, its to what had happened "to the matter of the day" (o dinka kya huva ). Abdul Rehman replied that accused 1 should personally go to the factory and then they would talk about the matter. This happened on 12-11-1954 as I just said. On the next day, the 13th November, both the accused went to the factory at about 8-30 in the morning. At that time, Abdul Rehman, Bhagwat and Basu were in the office. Accused 1 and 2 took Abdul Rehman and Bhagwat aside and made a definite proposal about the payment of illegal gratification. When I say that they made a definite proposal, I mean that it was for the first time on that date 13-11-1954 that the amount of the illegal gratification was specified by the accused. Both the accused said that the Society should pay them Rs. 5000/- or half a per cent on the turnover. There was a certain amount of haggling and the amount of Rs. 5000/- was reduced to Rs. 3000/- on the basis of Rs. 50 per month from the inception of the Society. The Society had then been in existence for about five years and Rs. 50/-a month or Rs. 600/- a year would come to Rs. 3000/- for five years. Both the accused told Abdul Rehman and Bhagwat that, if they did not pay Illegal gratification as mentioned above, they would have to report adversely on the affairs of the Society. On that day, 13-11-1954, accused 2 admired the wrist watch which Abdul Rehman had on his wrist. He spoke in appreciative terms about that watch, how nice it looked and how splendid it Would appear on the wrist of a supervisor. He said that although he was a supervisor, and therefore an officer, he had not been fortunate enough to possess a wrist watch like it. So saying, he took the wrist watch from Abdul Rehman. Then he took a letter paper of the Society, wrote out a receipt in the amount of Rs. 40/-, took a revenue stamp of one anna from the Accountant of the Society and affixed it on the paper. In this manner, the paper purported to be a receipt for Rs. 40/- and an appearance was created as though the sum of Rs. 40/- was paid by accused 2 to Abdul Rehman in the matter of that wrist watch. The prosecution contends that in fact no amount was paid by accused 2 to Abdul Rehman for that watch. Rajderkar returned from Delhi to Bombay on 16th November 1954. Bhagwat and Basu apprised him with the insistent demand of both the accused for illegal gratification. It was then that Rajderkjar gave instructions for filing a complaint with the Anti-Corruption Branch. On 17-11-1954, Abdul Rehman approached the Anti-Corruption Branch of the police. His statement was recorded by Sub-Inspector Patil on that day in the evening. In the morning of 18-11-1954, Bhagwat endeavoured to contact accused 1 and 2 on telephone; but he could not contact them. On the same day (18-11-1954), Bhagwat received a telephone call from accused 1 in which accused 1 enquired from Bhagwat whether the Society had decided to pay illegal gratification to him. Bhagwat told accused 1 that he and accused 2 should go to the factory the next morning which would be the morning of 19-11-1954. It may be noted that on that day, 18-11-1954, Basu went to the cabin of accused 1. At that time accused 2 and Gadre were sitting with accused 1 in the cabin of accused 1, At that time, accused 1 informed Basil that he had already telephoned to Bhagwat that they were going to the factory the next morning. Basu, being thus assured of a visit by the accused to the factory in the morning of 19-11-1954, went to the office of the Anti-Corruption Branch of the Police Department and made a statement. It may be noted that in the meantime on 17th November Gadre, who had already prepared a suitcase for accused 1, had delivered it at the residential address given to him by accused 1. The Anti-Corruption Branch of the Police Department decided to lay a trap on 19-11-1954. This was consequent upon a statement made to them by Basu in the afternoon of 18-11-1954. On 19-11-1954 in the morning Inspector Sawant of the Anti-Corruption Branch, three Sub-Inspectors, Majigoad, Desai and Patil, photographer Raje, two panchas and half a dozen constables went to the Society. Originally, the plan was that the trap should take place inside the Society premises, but as we shall presently see, the accused were too clever for that sort of a thing being done. Abdul Reh-man's person was searched and thirty currency notes each of the value of Rs. 100/- were given to him. He was then instructed that he might not pay the entire amount to the accused, but might pay some lesser amount so that it might occasion a certain amount of conversation between him (Abdul Rehman) and the accused. The instruction to Abdul Rehman was that the amount was to be paid to the accused in the factory. The two panchas were asked to keep themselves near Abdul Rehman and they were told to see and hear what happened. Photographer Raje was sent with a movie camera and he was instructed to take a movie picture of the incident as it happened. It was about 9-45 in the morning. So it must be remembered that I am referring to the incident of 19-11-1954. At 9-45 in the morning, both the accused went near the entrance of the Society building. Inspector Sawant and a Sub-Inspector were sitting inside the office of the Society. Abdul Rehman, the two panchas. Laxman and Ravji, some constables and Sub-Inspector Desai were sitting inside the factory. Two constables, one of whom was Bhaskar Kulkarni were standing on the road outside the office. Basu was in the office. The accused made enquiries from Basu as to who were the persons who were sitting in the office. I have just said that Inspector Sawant and a Sub-Inspector were sitting in the office. They were introduced to the accused as a trader and a typist respectively. As I mentioned above, accused Nos. 1 and 2 were too clever to enter the factory. They said that they would not enter the office, but Abdul Rehman should be called outside. So Abdul Rehman had to go outside the office. He told the accused that everything was ready, that the payment would be made to them and that they should enter the office and take their seats. But the accused would not do so. They said they would not enter the office. So Abdul Rehman went in and informed Bhagwat and the police officers, who were inside the building, of what the accused were saying. This resulted in the panchas, the constables and the police photographer being sent out of the factory building one after the other. In the meantime, the accused had left the factory and had gone a distance of 25 or 30 feet from the office of the factory and had stood on the road. In a few minutes time, Abdul Rehman went there and joined them. At that stage, the accused made a suggestion to Abdul Rehman that they might go to Sion. Abdul Rehman declined to accompany them as far as Sion. He suggested in his own turn that they might all go to a hotel. Although the accused were insisting that they should go to a distant place, they ultimately yielded to the suggestion of Abdul Rehman that they might go to a hotel. Ultimately, Abdul Rehman and accused 2 went inside the hotel known as the Goverdhan Hindu Hotel. At the time when accused 2 entered the Goverdhan Hindu Hotel, he had a newspaper in his hand. Accused 1, clever as he was, did not enter the hotel. He stood outside the hotel at the entrance, with his one foot on the top step of the hotel and the other foot on the step below. The two panchas went inside the hotel. One of them took up a position at a table near the counter and the other one stood behind accused 2 and a little towards the left of accused 2. Abdul Rehman was facing the entrance to the hotel. So far as accused 2 is concerned, his back was towards the entrance. As I just said, one of the, panchas took up his position behind accused 2 and a little to his left. When Abdul Rehman and accused 2 were in that position inside the hotel with one of the panchas sitting at a table near the counter and the other panch being a little behind accused 2 and a little to his left, accused 2 made a demand for money from Abdul Rehman. Abdul Rehman signalled to accused 1 who was standing outside near the entrance that he too might go in. But accused 1 indicated by a signal that he Would not go in. Thereafter, Abdul Rehman kept back five currency notes each of the value of Rs. 100/- each and gave the rest of the notes to accused 2. Accused 2 noticing that only Rs. 2500/-were being paid to him enquired as to why a smaller amount than Rs. 3,000/- was being paid. Abdul Rehman told him that he should be satisfied with that much. He also requested accused 1 that no adverse report against the Society should be made. When the bundle of currency notes (25 currency notes of Rs. 100 each) was given into the hand of accused 2 by Abdul Rehman, accused 2 put the currency notes in the fold of the newspaper which he was carrying in his hand. After putting the currency notes to the fold of the newspaper, he went up to accused 1 and gave the said newspaper to him. In other words, the newspaper in the folds of which there were 25 currency notes of Rs. 100/-each was passed on by accused 2 to accused 1. Accused 1 opened the fold, satisfied himself that the currency notes were there and then he started to move towards the pan shop which adjoined the Goverdhan Hindu Hotel. At the pan shop, accused 1 placed an order for three pans to be made. The panwalla concerned was Ramnarayan. Ramnarayan was asked by accused 1 to prepare the pans quickly which he did. A packet of three pans was given by Ramnarayan to accused 1. It may be noted that, after accused 2 had handed over the newspaper containing the currency notes to accused 1, he (accused 2) had moved a little on the other side of the hotel and within a minute or two Abdul Rehman also went outside the hotel and gave a pre-arranged signal and the signal was to be given by pulling up his socks. It may be noted that, when accused 1 was waiting outside the hotel on the flight of steps leading into the hotel, constable Bhaskar Kulkarni was also standing nearby at a distance of less then half a dozen paces from accused 1. As soon as Abdul Rehman gave a signal, Constable Bhaskar caught hold of both the hands of accused 1 from behind. With each hand of his he caught hold of each hand of the accused 1. The moment accused 1 realised that he was caught, he dropped the newspaper containing the currency notes in its fold. He threw it away from him and the thrown newspaper fell on the platform of the pan shop. Accused 2 also was held by a policeman. A panchnama of the platform of the pan shop was made and the newspaper, in the folds of which there were 25 currency notes of Rs. 100/- each, was attached from there. These shortly stated are the facts of the case for the proceedings upon which the accused were sent up for trial for an offence under Section 161 read with Section 34. Penal Code, before the Court of the learned Special Judge, Greater Bombay, and as I have stated above, on the evidence placed by the prosecution before him, the learned Special Judge convicted both the accused under Section 161 read with Section 34, Penal Code.